Pearce v. Savage

Under a devise, in trust, to executors for the children of the testator, till the youngest shall arrive at the age of twenty-one years, (the executors, in the mean time, to manage the estate, and receive the income,) the executors took a fee simple estate in trust, defeasible when the youngest child should come to the age of twenty-one years. A notice to foreclose a mortgage, which states, “that the condition had been broken, and now the mortgagees give notice of the same, and that they claim a foreclosure of said mortage,” is sufficient. The person entitled to a vested remainder, has an immediate fixed right to future enjoyment, which passes by deed. Though mortgagees may be joint tenants, yet, when the mortgage is foreclosed, they hold the estate in common. The receipt of a mortgagee, acknowledging satisfaction of the debt secured by the mortgage, is not conclusive evidence of its discharge, but is open to explanation. Where the mortgager, or one claiming under him, is entitled to redemption, the remedy is not in a suit at law, but by bill in equity.

Writ op Entry, dated Sept. 20, 1856, and the action was entered at the October term, of the same year. By agreement of parties, the case was tried as though commenced Oct. 6, 1857, and the date of the writ to be changed to that day. Plea, general issue, with a brief statement, and request to find the improvements, and the value of the land without them. The case was taken from the jury, the parties agreeing, that it should be submitted to the full Court, on the Report of Appleton, J., of the evidence. The demandant read in evidence: — 1. The will of Elias Bates, dated May 81st, 1823, and codicil, dated Nov. 12, 1823, and second codicil, dated Nov. 18, 1823; and it was admitted that the legal title to the premises demanded, was in said Elias Bates, at the time of his decease. 2. Deed of mortgage, Winslow Bates to Benjamin D. Whitney and Joseph Richardson, of Boston, partners, under the firm name of Richardson & Whitney, dated and acknowledged March 3, 1834, and recorded on the fifth of the same month. 3. A certified copy of a published notice, by said Richardson & Whitney, dated Oct. 20, 1840, to foreclose the said mortgage, which was objected to by the counsel for tenant, on. the ground that the notice was not in compliance with the provisions of the statute, as it does not state the cause for which the foreclosure is claimed. The objection was overruled, so far as to admit the evidence. The notice was in usual form to the last sentence, which stated “ that the condition has been broken, and now the said Richardson & Whitney give notice of the same, and that they claim to foreclose said mortgage.” 4. Deed of Benjamin D. Whitney to demandant, dated, and acknowledged Aug. 29, 1855, and recorded on the 5th of September following, for the consideration of $200, — -which deed was objected to by tenant’s counsel — for that, if the grantor had any interest, it was only a joint tenancy with Joseph Richardson, which could not be legally conveyed to a third person. The objection was overruled, and the deed admitted. 5. And also, deed of Joseph Richardson to demandant, (subject to the same objection by tenant’s counsel,) dated Sept. 5, 1857, and recorded Sept. 11, 1857. 6. The Probate record of the report of Lorenzo Sabine and others, commissioners appointed by the Judge of Probate for the county of Washington, to make division of the real estate of Elias Bates among his children, dated x\pril 10, 1840. The demandant here rested his case. Whereupon, the tenant moved for a nonsuit, which the Court refused to direct. The tenant then introduced the following, viz.: — 1. Deed from Henry Bates, 2d, now Winslow Bates, dated and acknowledged March 26, 1831, and recorded March 30, 1831, to Wooster Tuttle and Ezra Whitney, on condition that said Henry should faithfully perform his trust and agency, to which he had been appointed by said Tuttle and Whitney, to settle and collect any demands against or in favor of the estate [of said E. Bates,] and to let and manage the real estate, Ac. 2. Deed from said Tuttle and Whitney to Thomas G-. Hathaway, dated April 11, 1840, acknowledged same day, and recorded May 6, 1840. 3. Lease from T. G-. Hathaway to tenant, dated Nov. 6, 1841, of demanded premises. 4. Deed, Thomas G-. Hathaway to tenant, dated April 30, 1853, of the same, acknowledged before Winslow Bates on the same day, and recorded June 11, 1853. Much other evidence, including depositions, five accounts settled in Probate Court, and receipts, letters, Ac., which, not being alluded to in the opinion of the Court, are here omitted, except that demandant put in a release of Wooster Tuttle, as executor of the estate of Elias Bates, to Winslow Bates, and in which said Tuttle does “ for himself, his heirs, executors and administrators, remise, release and quit-claim unto the said Winslow Bates, his heirs and assigns, all actions and causes of action, and all claims or demands whatever, both at law and in equity, which against said Winslow Bates I ever had, now have, or which. I, my heirs, executors or administrators can, shall or may have, claim or demand, for or by reason of any act, matter or cause or thing, from the 28 th day of March, A. D., 1831, to the date of these presents. In witness whereof, I, the said Wooster Tuttle, have hereunto set my hand and seal, this 26th day of October, A. D.,. 1839. “Wooster Tuttle, and seal. “ Signed and sealed in the presence of A. Calkins, S. Buck-man. “Acknowledged before Sam’l Buckman, J. P., Oct. 26,1839.” The demandant also put in a receipt signed by Ezra Whitney to Winslow Bates, his agent, in full of all debts, dues, claims and demands against said Bates, on account of his agency, from the 28th of March, 1831, to Oct. 23, 1839. It was agreed, by the parties, that the full Court should be authorized to draw such inferences from the evidence legally admissible, as a jury would be authorized to draw, and enter a nonsuit or default according to the legal rights of the parties. That the declarations of a person from whom the party claims title, made before a conveyance from such person, are admissible, but must be pertinent to the question of title. And that the declarations of Winslow Bates, prior to the date of his mortgage to Richardson & Whitney, might be admissible, but not afterwards. The account of Bates, of an apparent balance of $21,14, is only an account of receipts and expenditures; does not purport to be a final adjustment, and contains no charge for his services, which was $250 per year. That there was no evidence of a breach of condition; but that, on the 13th of March, 1834, ten days after his mortgage to Richardson & Whitney, there was a balance in his favor of $152,46. The condition of the deed to Tuttle and Whitney had been faithfully performed, and the deed is, therefore, void. The release of Tuttle and the receipt of Whitney, the two executors of the estate of Elias Bates, establish this position. Admitting that, on the 10th of October, 1832, there was in the hands of W. Bates the sum of $21,14, his retaining that sum was no breach of the condition of his deed. His agency still continued. No demand for the payment of the money was made. The condition is, after reciting that the executors had authorized said Bates, [Winslow,] to collect and settle any demand in favor of, or against said estate, also, to let any dwellinghouse or store, or any other real or personal property belonging to the same; the said Henry (Winslow) to be at all times under the advice and control of said executors, — then follows this condition — “ If the said Henry (Winslow) shall faithfully and honestly perform the above trust and agency, then this deed is to be null and void, otherwise it shall remain absolute.” Is there the slightest ground for alleging that, having in his hands $21,14, the agency continuing and no demand having been made, is proof that he had not, up to that time, “ faithfully and honestly” performed the trust. The statement of such a proposition answers it. But, we contend, that paying over to the executors money collected is not a part of the condition. When a forfeiture follows the condition of a bond, or, what is the same thing, where the performance of a condition is to mate a deed void, and is, therefore, in the nature of a forfeiture, it will be construed strictly. The condition is not that Bates shall pay over the money collected. The object the executors intended to secure was evidently not that. They wished to secure his honesty and faithfulness in managing the estate with third persons; willing to trust to the personal responsibility of the agent to pay over any balance which might be in his hands when the agency terminated. The condition, viz., the honesty and faithfulness of the agent, is presumed to be fulfilled, until the contrary is shown. The will provided for the support and education of the heirs, and a part of the agent’s duty was to make payments for these purposes. The executors, in their account, have charged nothing for payments thus made, which will account for the apparent balance of $1960, stated to be in the agent’s hands, in the executors’ final account, settled Jan. 25, 1840. The deed of Bates to the executors could only avail them as security, up to the time of his conveyance to Richardson & Whitney, March 3, 1834,. and if, up to that time, he had “ honestly and faithfully” executed his trust and agency, the title he conveyed to Richardson & Whitney was as good as if the deed to the executors had not been made. The deed is in the nature of a mortgage, to secure future advances, which is only good for advances made up to the time of a subsequent conveyance by the mortgager. It is objected by the tenant, that the deed of B. D. Whitney to demandant is not good, because Richardson did not join in it, and that they, being joint tenants, cannot convey their interest by separate deeds, executed at different times. To this we answer: — (1.) A joint tenant may convey his moiety, and thus sever the tenancy by destroying the unity of title. 1 Hilliard’s Ab. 437, § 52. (2.) The subsequent deed of Eichardson would confirm this, if confirmation were necessary, and bring the whole title into demandant. It it were one deed, executed at different times by the two grantors, it would, undoubtedly, be good, and there is no difference between two deeds and one deed executed by different grantors at different times. (3.) They are not joint tenants. The only ground on which it is claimed that they are joint tenants, is, that they were partners. But a conveyance to partners, whatever it may be by common law, does not make them joint tenants against the language of the statute, which provides that a joint tenancy can only be created by express words. This is expressly decided in Blake v. Nutter, 19 Maine, 16, and it has been held that, even at common law, the doctrine of survivorship and rights of partnership creditors does not attach to real estate held by partners, even when bought with partnership funds. (4.) But it may be said that, being a mortgage, they are joint tenants. Kinsley v. Abbott, 19 Maine, 430, decides expressly that, although before foreclosure the estate is joint, yet, after foreclosure, they hold as tenants in common. See, also, Goodwin v. Richardson, 11 Mass. 469. In Randall v. Philips, 3 Mason, 378, Story, J., holds that, in the mortgage, even before foreclosure, they are tenants in common, and that, at death, the land goes to the heir, the debt to the administrator, the land being subject to the heir for the debt. In Rigden v. Vellier, 2 Yesey, 258, Judge Hendricks held that its being a mortgage, instead of raising a presumption of joint tenancy, had just the contrary effect. Was the deed of W. Bates to Eichardson & Whitney void, because it was executed before the youngest child of Elias Bates arrived at the age of 21 years? and, if so, can the tenant, claiming title under a later deed, from the same party, and made under the same circumstances, avail himself of this defence ? By the original will, it appears that the testator intended to give his children equal shares in his real estate, — no intermediate estate is devised, — so that, unless a fee passed to them at his death, the estate, from his death to the coming of age of the youngest child, remained undevised. This would be .contrary to the rule of construction of wills, viz.: — that the testator is presumed to intend to devise his whole estate, unless, by the language of the will, a different construction is forced upon the Court. Pickering v. Langdon, 22 Maine, 413. The intention of the testator, that the children shall share equally in the value of the real estate, at the time the youngest shall come to the age of 21 years, is not frustrated by a conveyance like that to Richardson & Whitney, subject to the conditions of the will. There is no devise to the executors of any estate, not even possession is given to them. It is only the care and management, with a qualified right to sell for the accomplishment of particular objects. Even if the Court should construe the clause in the codicil as a devise of a chattel estate to the executors, with a qualified power to convey part in fee, it is clear that Winslow Bates had a vested remainder, subject only to the condition. Such an estate may be conveyed by deed. 3 G-reenl. Cruise, 141. The reasonable construction of the will, codicil and deed of Bates, seems to be this. The will devises the fee in equal shares to the children, as tenants in common, with restriction of partition and several possession, until the youngest comes of age, subject to the management and improvement of the executors, with a qualified power of sale for specified purposes, and Winslow Bates conveys his interest, subject to all these conditions. If this is not the case, and the fee did not pass to Winslow by the will, until the youngest child was of age, then a share of whatever part was undivised came to him as an heir at law of the testator, and, being the same portion of the estate as that devised, makes the complement of his title. At any rate, it seems clear that, at the death of Elias Bates, an interest in his real estate passed to Winslow, by devise or descent, or both, subject to whatever restrictions are contained in the will, and so long as he, being of full age, kept himself within the spirit of the restrictions, he could convey his interest. 3 Greenl. Cruise, 435. The tenant, who claims title under a deed from the same Winslow Bates, made during the time that these restrictions, whatever they are, existed, cannot set up and avail himself of a defence, because thereby he avoids his own deed and becomes a mere trespasser. 14 Pick. 467, and citations. Winslow Bates, at the time of the conveyance to Bichardson & Whitney, appears to have been in the actual possession of the property, so far as to collect the rents thereof. If we hold that the restriction of the power to sell was intended by the testators for the benefit of the several heirs, then only Winslow Bates can make the objection to the validity of the deed. A conveyance of his interest must be good as against third persons.